Mallamo v. Town of Rivesville

• Decision Date: 21 May 1996
• Docket Number: No. 22906,22906
• Citation: 477 S.E.2d 525,197 W.Va. 616
• Court: West Virginia Supreme Court
• Parties: Edward MALLAMO, Plaintiff Below, Appellant, v. The TOWN OF RIVESVILLE, a Municipal Corporation; Albert Wilson, as a Police Officer for the Town of Rivesville; Clifford Van Pelt, as a Member of the Marion County Sheriff's Department; Junior Slaughter, as Sheriff of Marion County; and the Marion County Commission, Defendants Below, Appellees.

Page 525

477 S.E.2d 525

197 W.Va. 616

Edward MALLAMO, Plaintiff Below, Appellant, v. The TOWN OF RIVESVILLE, a Municipal Corporation; Albert

Wilson, as a Police Officer for the Town of Rivesville;

Clifford Van Pelt, as a Member of the Marion County

Sheriff's Department; Junior Slaughter, as Sheriff of

Marion County; and the Marion County Commission, Defendants

Below, Appellees.

No. 22906.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 17, 1996.

Decided May 21, 1996.

Syllabus by the Court

1. "West Virginia Code § 29-12A-5(b) provides that employees of political subdivisions are immune from personal tort liability unless '(1) [h]is or her acts or omissions were manifestly outside the scope of employment or official responsibilities; (2) [h]is or her acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner; or (3) [l]iability is expressly imposed upon the employee by a provision of this code.' " Syl. pt. 1, Beckley v. Crabtree, 189 W.Va. 94, 428 S.E.2d 317 (1993).

2. " ' "Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation." Syllabus Point 2[,] State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968).' Syl. pt. 1, Peyton v. City Council of Lewisburg, 182 W.Va. 297, 387 S.E.2d 532 (1989)." Syl. pt. 3, Hose v. Berkeley County Planning Commission, 194 W.Va. 515, 460 S.E.2d 761 (1995).

3. " ' "A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).' Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992)." Syl. pt. 1, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).

4. "Summary judgment is appropriate if, from the totality of the evidence presented, the record could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove." Syl. pt. 2, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).

5. Pursuant to W. Va. Code, 29-12A-4(c)(2) [1986] and W. Va. Code, 29-12A-5(a)(3) [1986], a political subdivision is immune from liability if a loss or claim results from the execution or enforcement of the lawful orders of any court regardless of whether such loss or claim is caused by the negligent performance of acts by the political subdivision's employees while acting within the scope of employment.

Brent E. Beveridge, S. Sean Murphy, Fairmont, for Appellant.

Tamara J. DeFazio, Furbee, Amos, Webb & Critchfield, Fairmont, for Town of Rivesville and Albert Wilson.

McHUGH, Chief Justice:

This is an appeal from orders entered in the Circuit Court of Marion County, dismissing the Town of Rivesville and its police chief, Albert Wilson, from an action for damages instituted by plaintiff Edward Mallamo. This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. For the reasons discussed below, the October 21, 1994 order dismissing Police Chief Wilson is reversed while the December 6, 1994 order dismissing the Town of Rivesville is affirmed.

I.

On or about July 15, 1988, plaintiff Edward Mallamo was arrested on a highway in the Town of Rivesville by its police chief, Albert Wilson, for speeding and driving on a suspended license. Plaintiff was subsequently convicted in magistrate court of driving on a suspended license and on July 13, 1990, received notice that he was to appear in Marion County Circuit Court on July 17, 1990 to prosecute the appeal of his conviction. According to plaintiff, he was working in Grant County on the scheduled date of trial and was, therefore, unable to give his employer sufficient notice of his scheduled court appearance in Marion County. Consequently, when plaintiff subsequently failed to appear at his trial, the circuit judge issued a capias calling for apprehension of the plaintiff for failure to appear.

On Friday, July 20, 1990, plaintiff returned to his home in Fairmont, Marion County. En route to Fairmont, plaintiff telephoned his lawyer to inquire about the status of his case and learned that his lawyer's attempt to continue the case was unsuccessful and, further, that if a capias had been issued for plaintiff's failure to appear, he was subject to arrest and incarceration over the weekend should he be apprehended in Marion County.

That afternoon, Wilson drove by plaintiff's home and observed plaintiff's car in the driveway. He then contacted the Marion County Sheriff's Department and requested assistance in serving the capias on plaintiff. Wilson subsequently met Marion County Deputy Clifford Van Pelt in a nearby parking lot and the two drove their vehicles to the plaintiff's home.

Upon arriving at plaintiff's home, Wilson and Van Pelt noticed that the keys were in the ignition of plaintiff's car and that the hood of the car was hot. They further observed that lights were on in the house and that the front door was slightly ajar. Van Pelt testified that he heard a male voice from inside the house. Believing that someone was in plaintiff's house, Wilson and Van Pelt knocked on the door and identified themselves as law enforcement officers. However, plaintiff failed to answer. Plaintiff testified that when he saw the officers drive up to his home, he proceeded to the basement, believing that the officers would simply go away.

Van Pelt subsequently contacted Marion County Central Communications from the radio in his cruiser and requested that a dispatcher contact the Marion County Prosecutor's Office to advise the officers on whether they should enter the plaintiff's home. The dispatcher indicated to Van Pelt that the prosecuting attorney on-call had advised the officers not to enter the home, but to either wait for plaintiff to come out or to obtain a search warrant. In the meantime, Van Pelt's supervisor, Sergeant Robert E. Wolford, who was on patrol in his cruiser, overheard the conversation between Van Pelt and the dispatcher. Sgt. Wolford disagreed with the prosecuting attorney's advice and immediately contacted Van Pelt directly. Sgt. Wolford told Van Pelt that if he had reason to believe plaintiff was in the house, the officers could enter the house even if they had "to kick the door in." Wilson, who was standing several feet from Van Pelt's cruiser, has testified that while he heard Sgt. Wolford's directive to enter plaintiff's home, he did not hear the dispatcher's message advising against it.

Van Pelt and Wilson subsequently entered plaintiff's home through the partially-opened front door. According to Van Pelt, they, again, identified themselves as law enforcement officers and requested that plaintiff come to the front of the house. When the officers received no response, they began searching plaintiff's home. Upon observing a high-powered rifle in the corner of an upstairs' bedroom, the officers unholstered their weapons. The officers eventually proceeded to the dark basement where plaintiff, fearing arrest, had concealed himself in a storage closet. According to plaintiff's testimony he was holding the closet door closed and, through the crack between the door and the doorframe, could see Van Pelt holding his weapon in front of him. Plaintiff testified that when he saw the weapon, he "drew [his] arms back to [him]self out of just an involuntary reaction[,]" letting go of the door and, although plaintiff did not recall pushing the door open, he did recall releasing "the door in a rather hasty motion." Though plaintiff maintains that it was his intention to reveal to the officers his presence in the closet, he said nothing.

Van Pelt testified that he was holding his weapon in his right hand and was reaching for the closet door with his left when, according to both Van Pelt and Wilson, either plaintiff or the door, as it swung open, made contact with Van Pelt, causing him to fall backwards and his weapon to discharge. It was plaintiff's testimony that he was holding the closet door closed while he was seated on a box at least several inches from the floor. Wilson testified that following the shooting, he observed plaintiff in the closet, in the sitting position and the defendants' expert, Gerald Styers, a former Pennsylvania State Policeman, opined that, based upon the path of the bullet as described to him, as well as the location of the entry of the bullet through the door and in plaintiff's body, plaintiff was in some kind of sitting position when he was shot. The bullet from Van Pelt's weapon travelled through the door, entering plaintiff's left thigh to his upper buttocks where it remains lodged near his spine. The officers immediately called for a rescue squad. ¹

An investigation was subsequently conducted by Sergeant Marshall Parker of the Marion County Sheriff's Department. Though, strangely, plaintiff was not interviewed as part of the inquiry, Wilson gave a statement about the incident to Sgt. Parker while Van Pelt was interviewed by Chief Deputy C.L. Phillips. Plaintiff maintains that the two statements were suspiciously similar in both sentence construction and content. ²

Sgt. Parker's investigation report indicated, inter alia, that, upon his request, a search warrant for plaintiff's home had been issued when an inspection of the house immediately following the incident revealed not only the rifle Van Pelt and Wilson had initially observed in the upstairs bedroom, but also a sawed-off shotgun laying next to a bed. Inside the closet where plaintiff had been hiding was what was described as a "homemade billy club," an ax handle that had been cut off and wrapped in black...